Summary judgment is granted in favor of the Department of Natural Resources and against Russell L. Feuerbach, doing business as Landcraft. Notice of Violation N20917-S-111 is affirmed. The entry of this order does not effect a Settlement Agreement entered previously between the Department of Natural Resources and Rockwood Casualty Insurance Company.
FINDINGS OF FACT
1. The department of natural resources (the "Department") is an agency as the term is defined in IC 4-21.5-1-3.
2. IC 4-21.5 (sometimes referred to as the "administrative orders and procedures act" or "AOPA") is applicable to an "agency action" of the Department.
3. The Department issued notice of violation N20917-S-111 (the "NOV") with respect to a permit to mine surface coal granted Permit S-111 to Great Lakes Coal Company under IC 13-4.1 and 310 IAC 12 ("ISMCRA"). Issuance of the NOV is an agency action which is controlled by the AOPA.
4. Pursuant to IC 13-4.1-2-1(c), the Administrative Law Judge is the "ultimate authority" for contests of notices of violation under ISMCRA.
5. The surety for the performance of reclamation on Permit S-111 is Rockwood Casualty Insurance Company ("Rockwood"). When Great Lakes Coal Company failed to perform reclamation as legally required, Rockwood undertook the reclamation responsibility.
6. Russell L. Feuerbach, doing business as Landcraft ("Feuerbach"), is an independent contractor employed by Rockwood to do reclamation activities on the site of Permit S-111.
7. Feuerbach took administrative review of the NOV in a timely fashion.
8. In a separate pleading, Rockwood also took timely review of the NOV. The dispute between the Department and Rockwood was resolved by the entry of a Settlement Agreement. The Settlement Agreement was made a final order in this proceeding effective March 8, 1993. The Settlement Agreement entered between the Department and Rockwood was made without prejudice to Feuerbach. Similarly, the Settlement Agreement is not prejudiced or modified by the instant findings and order.
9. On May 26, 1993, the Department served upon Feuerbach its "First Requests for Admission".
10. As provided in Trial Rule 36, a matter contained in a request for admission is deemed admitted unless responded to within 30 days of service. Trial Rule 36 and the other rules of discovery are applicable to this proceeding pursuant to Trial Rule 28(F).
11. Feuerbach failed to respond to the First Requests for Admission within 30 days.
12. On July 27, 1993, the Department filed the Respondent's Motion for Summary Judgment and the Respondent's Memorandum in Support of Motion for Summary Judgment based primarily upon the failure by Feuerbach to respond to the First Requests for Admission.
13. The Administrative Law Judge entered on July 20, i993 his Order to Establish Schedule for the Review of the Respondent's Motion for Summary Judgment. In the order, Feuerbach was provided until August 23, 1993 to file any answer, cross-motion, or other response. Feuerbach filed no response of any kind.
14. The First Requests for Admission establish the following:
A. At all times and locations which are the subject of the NOV, Rockwood was the legal permittee for Permit S-111.
B. As set forth in the NOV, on or about September 15, through September 17, 1992 in the vicinity of Great Lakes Linton #2 pit of surface coal mine for Permit S-111, Rockwood was in violation of each of the following provisions:
(l) 310 IAC 12-3-4, Part IV of the Reclamation Plan;
(2) 310 IAC 12-5-53;
(3) 310 IAC 12-4-17;
(4) 310 IAC 12-5-12.1(e)(1)(iii);
(5) 310 IAC 12-5-24(a)(7)(B);
(6) 310 IAC 12-5-24(c);
(7) 310 IAC 12-5-24(d);
(8) 310 IAC 12-5-24(e);
(9) 310 IAC 12-5-55.l(a)(2);
(10) 310 IAC 12-5-55.1(a)(4)
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(11) 310 IAC 12-5-55.1(a)(5);
(12) 310 IAC 12-5-56.1(b);
(13) 310 IAC 12-5-59(a)
(14) 310 IAC 12-5-59(b); (15) 310 IAC 12-5-148(5); and (16) 310 IAC 12-5-148(6).
15. There is no genuine issue in dispute in this proceeding. The Department is entitled to summary judgment against Feuerbach under IC 4-21.5-3-23.
16. The NOV should be affirmed.